THE HONOURABLE Mrs v. N.Balakrishnan2.The New India Assurance Co

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.07.2010CORAM :THE HONOURABLE Mrs.JUSTICE R.BANUMATHIandTHE HONOURABLE Mr.JUSTICE B.RAJENDRANCivil Miscellaneous Appeal No.3054 of 20041.Sumathi2.Minor L.Rajagopal3.Rajalakshmi - (since deceased)4.V.Singaravel... Appellants/Petitioners (Minor Rajagopal represented by mother-natural guardian Sumathi)vs.1.N.Balakrishnan2.The New India Assurance Co., Ltd.,Motor Third Party Cell,No.46, Moore street,Chennai-600 001.(R1 set exparte)... Respondents/RespondentsCivil Miscellaneous Appeals filed under Section 173 of MotorVehicles Act, 1988 against the Order dated 19.02.2004 made inM.C.O.P.No.5308 of 2001 on the file of Motor Accident Claims Tribunal[Chief Small Causes Court], Chennai.For Appellants: N.M.MuthurajanFor Respondents: Mr.K.Padmanabhan - R2R1-Set exparte in Lower Tribunal.JUDGMENTFor the death of deceased Lakshmanan in road traffic accident on16.07.2001 in M.C.O.P.No.5308/2001, Tribunal/Chief Small Cause Court,Chennai awarded compensation of Rs.9,79,020/-. Being dissatisfiedwith the quantum of compensation, wife, minor son and parents ofdeceased have filed this Appeal seeking enhancement of compensation.2. Brief facts are that on 16.07.2001 at about 7.15 A.M., thedeceased was riding the motor cycle bearing registration No.TN-02 H8356 along Turnbulls road, Nandanam, Chennai from south to north https://hcservices.ecourts.gov.in/hcservices/ direction. In the junction road, after getting signal, deceased tooka right turn along Chamiers road and proceeded east to west on theabove said road. At that time, the driver of the lorry bearingregistration No.TNN 2052 who drove the same behind in a rash andnegligent manner dashed on the rear side of the motor cycle. Due tothe impact, Lakshmanan rider of the motorcycle [deceased Lakshmanan]sustained grievous injuries and admitted in Government GeneralHospital, Chennai. Inspite of treatment, Lakshmanan succumbed to theinjuries on 23.7.2001. Regarding the accident, criminal case in CrimeNo.380/S1/2001 of Guindy Traffic Police Station was registeredagainst the lorry driver. Alleging that the accident was due to rashand negligent driving of the lorry driver, wife, minor son andparents of the deceased Lakshmanan have filed Claim Petition claimingcompensation of Rs.45,00,000/- and restricted the claim toRs.10,00,000/- for want of court fees.3. Resisting the Claim Petition, 2nd Respondent-Insurance Companyhas filed counter stating that on the date of accident, the driver ofthe lorry did not possess any valid driving licence and that the 2ndRespondent-Insurance Company is not liable to indemnify. 2ndRespondent-Insurance Company had also denied the age, occupation andincome of the deceased and also the total quantum of compensationclaimed and prayed for dismissal of Claim Petition.4. Before the Tribunal, 1st Claimant-Sumathi examined herself asPW1. One Murugan, who stood as eye-witness to the accident wasexamined as PW2. Exs.P1 to P13 were marked. On the side ofRespondents, no witness was examined and no documents were marked.In his evidence, PW2 has stated that the rider ofmotorcycle/deceased-Lakshmanan proceeded from Turnbulls road and tooka right turn to Chamiers road from west to east and at that time thedriver of the lorry bearing registration No.TNN 2052 drove thevehicle in a rash and negligent manner in the same road and dashedagainst the motorcycle from behind and caused the accident. Therider of motorcycle [deceased Lakshmanan] sustained bleeding injuriesand PW2 admitted him in Government General Hospital, Chennai. PW2 isthe complainant in Crime No.380/S1/2001 who lodged the complaintbefore Guindy Traffic Police Station. As per Ex.P8, deceased haddriving licence to drive the motor cycle on the date of accident. 2ndRespondent-Insurance Company has not examined the driver of thelorry. As there was no contra evidence, based upon the evidence ofPW2 and other materials on record, Tribunal held that the accidentwas due to rash and negligent driving of lorry driver and furtherheld that the owner and driver and insurer/2nd Respondent are jointlyand severally liable to pay compensation of Rs.9,79,020/- withinterest at the rate of 9% p.a. from the date of Claim Petition.5. In so far as negligence and quantum of compensation awarded,2nd Respondent-Insurance Company has already filed C.M.A.No.3696/1994.No notice was ordered to the Claimants and the said Appeal came to bedismissed at the admission stage itself. Earlier, whenC.M.A.No.3054/2004 came up for hearing, pointing out the dismissal ofC.M.A.No.3696/2004 preferred by the 2nd Respondent-Insurance Company, https://hcservices.ecourts.gov.in/hcservices/ Division Bench of this Court by its order dated 30.03.2007 dismissedthe Claimants' Appeal [CMA.No.3054/2004] for enhancement. The saidjudgment was challenged by the Claimants before the Supreme Court inCivil Appeal No.5324/2006. Pointing out that Appellants were notrepresented in the Appeal preferred by the 2nd Respondent/InsuranceCompany [CMA.No.3696/2004], the Hon'ble Supreme Court by its orderdated 25.08.2008 has set aside the Judgment of the High Court inC.M.A.No.3054/2004 and remitted the matter back to the High Court forconsideration of the matter afresh. In C.M.A.No.3696/2004,Claimants-Appellants in CMA.No.3054/2004 have not entered inappearance. Since the Appeal came to be dismissed at the admissionstage itself, in our considered view, dismissal of C.M.A.No.3696/2004is not an impediment to consider the matter for enhancement ofcompensation.6. As is seen from Ex.P6-series, deceased Lakshmanan obtainedprovisional certificate in B.Com. degree in September 1993 fromUniversity of Madras. He has also studied M.Com. post graduatecourse in University of Madras by correspondence education. As perthe evidence of PW1 and as is seen from Ex.P6-series, deceased was aDiploma holder in computer utilities console, operation (data entry)Word processing. His performance has been certified as 'Good' byNataraj Computer Centre. Deceased was also self employed as Income-tax consultant. From Ex.P13, it is seen that deceased enrolled as aSales tax practitioner as per the proceedings of the DeputyCommissioner(CT) dated 19.04.2001. Ex.P10 is the Bank pass book ofthe deceased for the period from January 2000 to July 2001. Byperusal of Ex.P10 Pass book, it is seen that deceased credited atotal sum of Rs.23,280/- in the month of January 2001. He creditedRs.8411/- in the month of February 2001. Like wise, he creditedRs.8495/- in the month of March 2001. He also credited Rs.22,550/-in the month of April 2001 and he credited Rs.15,216/- in the monthof May 2001. Deceased credited Rs.3000/- in the month of June andtill 12.07.2001. Deceased involved in the accident on 16.07.2001. Aspointed out by the Tribunal, various credits made in the bank accountof the deceased shows that deceased was earning substantially goodincome.7. At the time of accident, deceased was aged 34 years. Eventhough, Tribunal observed that future prospects of the deceasedshould be taken into consideration, Tribunal has taken the incomeonly at Rs.7000/- per month. Deducting 1/3rd for personal expenses,loss of dependency to the family was calculated at Rs.4670/- permonth and by adopting multiplier '17', the total loss of dependencyis calculated at Rs.9,52,680/-. 8. It is fairly well settled that while awarding compensation, theTribunal/Courts will have to keep in view the future prospects andthe Court should bear them in mind while assessing the future loss ofincome. In K.K.Janardhanam Vs. Thiruvalluvar Transport CorporationLimited (2008 ACJ 875) and in Reshma Kumari and Others Vs. MadanMohan and another (2009 AIR SCW 6999), Courts have held that thefuture prospects have to be taken into consideration. Since deceased https://hcservices.ecourts.gov.in/hcservices/ Lakshmanan was a qualified M.Com. post graduate who was working asIncome-tax consultant and enrolled as Sales tax practitioner, we areof the view that the income taken by the Tribunal at Rs.7000/- permonth is very low. As the deceased was a post graduate self employedas Income tax consultant and also registered as Sales taxpractitioner, his income is taken at Rs.10,000/- per month.Deducting 1/3rd for personal expenses i.e. Rs.3330/-, loss ofdependency is calculated at Rs.6670/- rounded to Rs.6675/- per monthand the annual loss of dependency is calculated at Rs.81,100/-[Rs.6675/- x 12 = Rs.80,100/-]. Adopting multiplier '17', the totalloss of dependency is calculated at Rs.13,61,700/- [Rs.80,100/- x 17].9. In so far as conventional damages, Tribunal has awardedRs.5000/- for "pain and suffering". In case of death of deceasedperson, there cannot be any compensation to the dependents ofdeceased under the head "pain and suffering". 1st Claimant is a youngwidow who has lost the love and affection and consortium of herhusband at her young age and therefore, Rs.10,000/- is awarded for"loss of consortium". Rs.10,000/- each i.e., Rs.30,000/- is awardedfor "loss of love and affection" to Claimants 2 to 4. In so far asother conventional damages, Tribunal has awarded Rs.4340/- for"medical expenses", Rs.1000/- for damages to the motor cycle andRs.1000/- for "transport to hospital" and the same are maintained.In addition, Rs.2000/- is awarded for "funeral expenses".10. In modification, the total compensation of Rs.9,79,020/-awarded by the Tribunal is enhanced to 14,10,040/- rounded toRs.14,10,100/- as under:-Loss of dependency:Rs.13,61,700.00(Rs.80,100 x 17)Loss of consortium:Rs. 10,000.00Loss of love and affection:Rs. 30,000.00Medical expenses:Rs. 4,340.00 Damages to motorcycle:Rs. 1,000.00Transport charges:Rs. 1,000.00Funeral expenses:Rs. 2,000.00-------------------Total:Rs. 14,10,040.00-------------------Rounded to :Rs. 14,10,100.00The Tribunal has awarded interest at the rate of 9% p.a. and the sameis maintained. The enhanced compensation has to be equallyapportioned amongst the Claimants 1 and 2 – wife and son of thedeceased. It was stated before us that the 3rd Claimant-Rajalakshmi, mother of deceased has passed away. Since, 3rd Claimant- https://hcservices.ecourts.gov.in/hcservices/ Rajalakshmi is said to have passed away, the compensation in respectof 3rd Claimant shall be equally apportioned amongst the Claimants 1and 2 – wife and minor son.11. In the result, the compensation awarded by the Tribunal isenhanced to Rs.14,10,100/- from Rs.9,52,680/- payable with interestat the rate of 9% p.a. from the date of Claim Petition and the CivilMiscellaneous Appeal is partly allowed. It was stated before us that the 2nd Respondent-Insurance Companyhas deposited the entire compensation amount of Rs.9,79,020/- awardedby the Tribunal along with accrued interest. Claimants 1 and 4 and3rd Claimant-Rajalakshmi are said to have withdrawn their respectiveshare and the share in respect of minor 2nd Claimant is ordered to beinvested in a nationalised bank till he attains majority. 2nd Respondent-Insurance Company is directed to deposit theenhanced compensation i.e. Rs.4,57,420/- along with accrued interestwithin a period of eight weeks from the date of receipt of copy ofthis Judgment. On such deposit, the Claimants 1 and 2 [wife and sonof deceased] are entitled to withdraw their respective share ofenhanced compensation along with accrued interest. The share inrespect of minor Claimant-Rajagopal is ordered to be invested in anationalised bank till he attains majority. In the circumstances of the case, there is no order as to costs inthis Appeals.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarbbrTo1.The Chief Judge, Small Causes Court, Chennai-104.2.The Registrar, Small Causes Court, Chennai-104.3.The Section Officer, V.R.Section, High Court, Madras-104.2ccs to Mr.N.M.Muthurajan, advocate SR.No.49827one cc to Mr.K.Padmanabhan, advocate SR.No.50296 CMA.No.3054 of 2004DM(CO)SKY/25/11/2010